Knell v Travel Compensation Fund - [2011] SADC 183

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
KNELL v TRAVEL COMPENSATION FUND
[2011] SADC 183
Judgment of His Honour Judge Herriman
5 December 2011
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
Appellant refused compensation by Travel Compensation Fund, following collapse of agent. Whether appellant a resident of Australia at time travel arrangements made. Where respondent applied wrong test in making decision. Whether matter should be remitted for its further consideration. Whether respondent prevented from now exercising discretion to extend time for acceptance of claim.
Finding that appellant was a resident of Australia and that court ought substitute its decision to that effect and order payment of compensation.
Travel Agents Act 1986 s 19, s 21; Travel Agents Regulations 1996; District Court Act 1991 s 42E, 42F(b); Migration Act 1958 Cth; Migration Regulations Cth, referred to.
Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187; The Commissioner of Taxation v Miller (1946) 73 CLR 93; Levene v Inland Revenue Commissioners [1928] AC 217; Inland Revenue Commissioners v Lysaght [1928] AC 234; Robertson v The Federal Commissioner of Taxation (1937) 57 CLR 147; Foreman v Beagley [1969] 3 All ER 838; Fox v Stirk [1970] 2 QB 463; Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194; Akbarali & Ors v Brent London Borough Council [1983] 2 AC 309; In Re Beni (1974) 9 SASR 253, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"resident of Australia"

KNELL v TRAVEL COMPENSATION FUND
[2011] SADC 183

This is an appeal under s 21 of the Travel Agents Act 1986 against a decision of the Travel Compensation Fund made on 21 December 2010 rejecting a claim by the appellant in respect of moneys lost by him due to the collapse of a participating travel agent with whom the appellant had in May 2006 deposited funds of $11,103.
I will not attempt to describe in detail the manner by which the appeal comes before the Court in its Administrative and Disciplinary Division, but nor was it in contest that the Court has jurisdiction to hear and determine it.
Regulations under the Travel Agents Act 1986 establish a Deed of Trust (‘the Deed’) pursuant to s 19 of the Act known as the Travel Compensation Fund (‘the Fund’ or ‘the respondent’). The objects of that trust are to provide a fund for the benefit of and to compensate persons who have entrusted moneys to a travel agent with respect to travel-related arrangements in circumstances where the agent has failed to account for that money. I will not describe the terms of the Deed in detail, but it provides that the trust is to be operated by a duly appointed Board of Trustees (‘the Board’) and clauses 15 and 16 further provide:
15.    PAYMENT OF COMPENSATION
15.1The Board must pay compensation out of the Fund to a person who –
(a)enters into travel arrangements or travel-related arrangements directly or indirectly with a participant; and
(b)has suffered or may suffer direct pecuniary loss arising from a failure to account by the participant for money or other valuable consideration paid by the person; and
(c)is not protected against the loss by a policy of insurance.
…
15.5Compensation payable under this clause is payable –
(a)to a person who is a resident of Australia in respect of any travel arrangements or travel-related arrangements, or
(b)to a person who is not a resident of Australia in respect of travel arrangements or travel-related arrangements within Australia.
…
16.     CLAIMS FOR COMPENSATION
16.1    A person is not entitled to compensation from the Fund unless the person makes a claim under this clause within 12 months after the failure to account for money or other valuable consideration to which the claim relates.
16.2The Board may accept a claim made later than 12 months if it considers it appropriate to do so.
16.3A claim for compensation is to be made in a form specified by the Board.
16.4The Board, if it is reasonably necessary to do so, may require that a person provide –
(a)additional information relating to the claim; and
(b)copies of any document in the possession or under the control of the person that relate to the claim.
16.5The Board may require that –
(a)information be provided by statutory declaration or in any other manner; and
(b)copies of documents be verified in a particular manner.
16.6The Board is not liable to make any payment for compensation to a person who has not complied with a requirement under clause 16.4 or 16.5.
16.7The Board may decide –
(a)to admit a claim in whole or in part; or
(b)to reject a claim.
…
There can be no doubt that the trustees of the Fund fell under a duty to exercise reasonable care in its management (Permanent Building Society (in liq) v Wheeler[1]. Equally, it is plain that they stood in a fiduciary relationship with its beneficiaries, that is to say, parties claiming compensation from the Fund, and they thus through their decision-maker fell under a duty not to prefer their own interests over those of claimants in circumstances of conflict (D Heydon & M J Leeming Jacobs’ Law of Trusts in Australia (7^th ed., 2006)). These observations have relevance in the context of matters I will shortly discuss.
[1] (1994) 11 WAR 187 at 235
It is not in dispute here that the appellant, whilst present in Australia in May 2006, paid three sums totalling $11,103 to the defaulting agent, Zacharias Travel Pty Ltd (in liquidation) trading as Athans Travel (‘Zacharias’), in connection with proposed overseas travel. Further, it is common ground that the proposed travel was to be in about March 2007 and that shortly before then, when the appellant sought to procure tickets from Zacharias, he was unable to do so. He then learned that Zacharias was under investigation by the Office of Business and Consumer Affairs (‘OBCA’). Ultimately, it went into liquidation and no tickets were ever provided to him. In June 2007 the travel agent’s licence of Athans Travel was cancelled.
In November 2010 the appellant learned for the first time of the existence of the Fund and its capacity to compensate him. He then obtained and on 12 November 2010 forwarded the appropriate claim form to it with an accompanying letter (Exhibit A5), but his claim was rejected by letter of 21 December 2010, the Fund then advising him in these terms:
We refer to your claim in relation to lost travel arrangements received on 16 December 2010 and advise that in exercise of powers delegated by the Board, the Chief Executive Officer considered your claim on 21 December 2010.
The Chief Executive Officer rejected the claim as provided under Clause 16.7 of the TCF Trust Deed.
At the time at which the travel agent collapsed and failed to account for the money which you had paid for travel arrangements, you were not eligible for compensation under the TCF Trust Deed. Persons who are not Australian residents are only entitled to compensation only in respect of travel within Australia, and your travel arrangements involved no such travel.
Accordingly, we are unable to assist you in this matter.
You should contact the Liquidator of the failed travel agent to obtain a Proof of Debt form and register as a creditor of the company. The Liquidator appointed was BKR Walker Wayland Chartered Accountants Level 8 55 Hunter St Sydney 2000 Contact Jan (02) 9951 5400.
I note the following things about that response:
(1)The timing of the compensation application necessarily fell outside the 12‑month claim period prescribed in clause 16.1 of the Deed.
(2)In his letter accompanying the application for compensation, the appellant set out his reasons for lateness in making the application in these terms:
It was only 3 days ago that I learned that the Travel Compensation Fund existed in Australia and that I should contact them without delay. I hastily searched the internet for your web page and only now realize that there is a legal recourse for consumers who’ve been defrauded by illegal operations within the travel industry in Australia.
I apologize for my late application. The TCF, I am aware, is not required to accept my late claim. Not being Australian, not having been to Australia in 4 years, not having ever booked another ticket in Australia, I was clueless that I ever had the TCF avenue to pursue. I humbly ask you to look over the events and kindly consider my late submission. Athans is a shame to all other legitimate operators within Australia. They have definitely scarred my image and perception of Australia. I hope you consider my claim so as I can remove this scar and one day return to the beautiful place you call your home.
It’s unfortunate. Had I know about the TCF back in ’07, I would have, without hesitation, submitted my claim at that time.
(3)I am satisfied that the provisions of clause 16(1), particularly when read in conjunction with the appellant’s letter, obliged the Board, under clause 16(2), to consider whether to exercise its discretion to accept the claim notwithstanding that it was made outside of the 12-month period.
(4)In the application form, the appellant had disclosed his address as in Thailand and had stated that he had last been in Australia in December 2006. It followed that by the time of the agent’s default, the appellant was no longer residing in this country.
(5)In purported reliance on clause 16.7 of the Deed, the Chief Executive Officer, as a proper delegate of the Fund, rejected the appellant’s claim, advising as noted above that:
At the time at which the travel agent collapsed and failed to account for the money which you had paid for travel arrangements, you were not eligible for compensation under the TCF Trust Deed. Persons who are not Australian residents are only entitled to compensation only in respect of travel within Australia and your travel arrangements involved no such travel.
Accordingly, we are unable to assist you in this matter.
(6)It is not now in contest that the respondent applied an incorrect test in reaching its decision to reject the claim. The proper time at which the respondent ought to have considered whether the applicant was ‘a resident of Australia in respect of any travel arrangements or travel-related arrangements’ (clause 15.5(a)) was not ‘the time at which the travel agent collapsed’, as the rejection letter asserts, but rather the time when the travel arrangement was made. The relevant time for that consideration was thus not June 2007 but May 2006.
The appellant’s claim is then that at the time his travel arrangement was made, he was a ‘resident of Australia’ within the meaning of the Deed. He contends that the respondent’s decision was reached applying the wrong test and that had it correctly addressed the application, the respondent would have accepted and paid his claim.
The respondent concedes that the decision-maker applied the wrong test but contends that the decision was nonetheless a correct one because, even as of May 2006, the appellant was not a ‘resident of Australia’.
Further to that, it contends that it has not, to this time, addressed the question of or made any determination about the lateness of the appellant’s claim and it remains at liberty to exercise that discretion by not accepting the claim under clause 16.2.
Finally, it contends that should the finding be against it on the question of the applicant’s residence at the time the travel arrangement was made, the court ought, in the exercise of its powers, remit the matter for its fresh determination of the claim, including the exercise of its discretion under clause 16.2, with any directions the court may consider appropriate to give with respect to the proper interpretation of the term ‘resident of Australia’.
In support of the appeal, I received into evidence the affidavit of the appellant (Exhibit A2), wherein he deposed to the circumstances he relied upon in support of his claim that he was at the relevant time a resident of Australia. Unsurprisingly, given his place of abode, he was not present at the hearing of the appeal itself but, through his counsel, offered himself for cross-examination by video-link. The respondent’s counsel advised the court that he did not wish to so cross-examine and, accordingly, in the absence of any oral evidence from the respondent, the appeal proceeded on the papers, and in particular on the basis of the uncontested facts in the appellant’s affidavit.
At this point, it is important to identify the evidence upon which the appellant relied in support of his claim that he was at the relevant time a resident of Australia.
There can be no doubt that at all relevant times he was a citizen of the United States of America. He had tertiary qualifications there and operated as the self-employed proprietor of a business known as ‘Innovations’. The principal activities of the business were in providing accommodation for websites which could not, for one reason or another, be accommodated by regular host providers.
In 2005, at the age of 37, the appellant decided that he wished to abandon his domicile in the USA and emigrate to Australia. He had received professional advice about gaining citizenship here and was confident that with his academic and business background, he would have a reasonable prospect of being accepted for permanent residency.
Accordingly, in October 2005 he sold up all his possessions in that country and travelled to Australia via Thailand, where he stopped over for a holiday. He arrived in Australia in December 2005 on a multiple entry tourist visa. He was then conscious of the fact that he had to be residing out of Australia when he applied for permanent residency but his plan was to stay here on his tourist visa for as long as he could, to then depart for Thailand and to apply for residency from that country. Pending its outcome, he planned to travel elsewhere in the world.
Upon arrival in Australia, he decided that he would reside in Melbourne and the nature of his business permitted him to operate it from there, albeit that the business remained based in the USA.
After arrival in Australia in December 2005, he stayed for a short time in hotels before procuring a house rental in a Melbourne suburb. He entered into a one‑year lease on that property with his landlord and negotiated an option to purchase it upon the expiration of 18 months. Subsequently, upon the expiry of the 12-month period, he extended the lease for a further six months, albeit that he then placed a sub-tenant in possession of the property.
Further to that, he opened an account with the Commonwealth Bank of Australia, arranged an Optus mobile phone contract and soon afterwards purchased a motor vehicle. Several months later he purchased another vehicle from the same dealer, as he wished to travel around Victoria on weekends. He arranged insurance over both vehicles and took up membership with the Royal Automobile Club of Victoria.
In about April 2006 he visited Adelaide and whilst he was staying here with a friend, approached Zacharias and purchased for $11,103 the travel tickets which are the subject of this claim. They related to world travel which he planned to undertake whilst awaiting the outcome of his permanent residency application.
He left Australia in December 2006, as he was obliged to do under the terms of his visa, and travelled to Thailand, where he commenced the preparation of his permanent residency application. That took him some time because of the amount of material he had to gather and ultimately the application was never lodged, nor did he retain copies of it. His unchallenged explanation for not pursuing it was the disenchantment he felt as a result of the events concerning this particular agent. In consequence, too, he did not seek to further extend his lease or exercise the option to purchase the Melbourne property.
In March 2007 in Thailand he contacted an agent which he had been told would facilitate the provision of the tickets he had arranged through Zacharias. He was then informed that that agent had had no dealings with Zacharias. Accordingly, he attempted to contact Zacharias directly, but his calls were unanswered and subsequently he learned from the OCBA that the company was under investigation. In speaking to that body, he was informed he could take legal action to recover the moneys he had lost but he was not told of the existence of the Fund or his ability to access it.
Later, in August 2007, he discovered that the licence utilised by Athans Travel had been cancelled some two months previously.
It is of note that at the time of the failure of that agent, the OCBA issued a media release advising persons, inter alia, of their capacity to make a claim under the Fund but, on the appellant’s account and as he was in Thailand, he did not see that. It was only in November 2010 that he learned of its existence. He thereupon conducted internet searches about the matter and formulated his claim in December 2010. In it, he specifically addressed the question of his delay in making the claim and the reasons for it, and I am satisfied that his purpose in doing that was to invite the Board’s consideration of his claim notwithstanding that it was made later than 12 months after the failure of the agent.
Further, in his affidavit he deposed that up until August 2007 he had planned to return to Australia as a permanent resident and that that was one of the reasons why he had continued to sublet his Melbourne property with an ongoing option to purchase. It was after then, however, that he decided not to pursue an application for residency and he then terminated his lease on those premises.
During the course of the hearing, a question arose as to the applicability of various versions of the Deed, as it had undergone several amendments between the time of its promulgation as an attachment to the Travel Agents Regulations 1996 and the present time, but it was ultimately conceded that none of those amendments were, until 2011, supported by appropriate regulations under the Travel Agents Act. Accordingly, I have found and proceeded upon the footing that the provisions of the Deed on which the decision under review was based, were those provisions which attached to the regulations of 1996 as amended up to March 2000.
The 2011 amendment assumes some significance, however, in the light of the appellant’s contention that should I allow the appeal and choose to substitute my decision for that of the original decision-maker under s 42F of the District Court Act 1991 (‘DCA’), I may then apply the 2011 Deed. It contains an amended form of clause 15.5 which significantly expands the range of applicants who may apply for compensation and in particular captures, by any measure, the circumstances in which the appellant made the relevant arrangements here.
I will return to that matter later but for the purposes of examining the decision under review, I must focus upon the Deed attached to the Travel Agents Regulations 1996, as amended to March 2000.
The central question then is whether the appellant was, at the time the relevant travel bookings were made, ‘a resident of Australia’ within the meaning of clause 15.5(a) of the Deed.
I was addressed at length by both parties on this topic. The appellant’s position is that that expression is to be understood in its ordinary and simple meaning and without regard to the various legislative provisions in this country which speak of residence in Australia: in short, that he was living in Australia at the relevant time and then intended to make his permanent home here. Further, he argues that insofar as any question of his residence did arise or might have arisen on his application, it was incumbent upon the respondent to accord him procedural fairness by requiring him to provide further information and/or documentation in support of that claim and that it failed to do so.

The respondent took a different view, urging that the appellant was at relevant times a resident of Thailand and that he was in Australia merely as a visitor and traveller and without a right of residence. It contended that the plain purpose of the Deed is to speak of a person’s residency status in Australia for the purposes of travel, that the nearest body of federal legislation dealing with travel is the Migration Act 1958 (Cth), that the definition of residency in that Act ought therefore be the source of interpretation of the expression in the Deed and that the appellant did not qualify as a resident within the terms of that legislation.
I have considered the submissions of the parties and the relevant authorities at some length and I am persuaded that the proper interpretation of the term ‘resident’ in clause 15.5(a) of the Deed is not one informed or governed by any particular piece of legislation, but that the word should carry its ordinary and everyday meaning. I so conclude for these reasons:
(1)I am not persuaded by the respondent’s contention that there is congruence between the aims of the Deed and the purposes of the Migration Act. At least one of the purposes of the Deed has nothing whatsoever to do with the Migration Act: it provides compensation for residents of Australia who suffer from the defaults of travel agents in connection with travel within or outside of this country. Indeed, it might be expected that compensation payable from the failure of such an arrangement would be a more common occurrence than compensation affecting persons entering this country and who, for obvious reasons, come within the purview of the Migration Act. Further to that, as the appellant correctly put, the Migration Act is concerned with the status of aliens entering this country and not with the financial undertakings of travellers who choose to make bookings through agents operating here.
(2)It is evident from a review of the various forms of Commonwealth legislation dealing with residence that there is no common approach to its meaning and, in any event, various definitions are adopted that are unhelpful, i.e. expressions such as ‘temporary residence’, ‘habitual residence’, ‘permanent resident’, ‘Australian resident’, ‘qualifying residence’, ‘ordinarily resident’, ‘constructive residence’, ‘foreign resident’, ‘domicile’ and so on are variously deployed to meet the purposes of particular legislative enactments, as in the Income Tax Assessment Act 1997 (Cth), the Migration Act and Regulations thereunder, the Australian Citizenship Act 2007 (Cth) and the Social Security Act 1991 (Cth).
(3)The Deed has not sought to define the expression in any way, and more particularly by reference to any piece of federal legislation, and it could easily have provided for that had it been thought appropriate.
(4)I have then reviewed the cases cited by the appellant in connection with that term and I am satisfied, as the appellant contends, that its meaning ought not be confined or construed by reference to any legislative instrument, that it means residence ‘simpliciter’.
In The Commissioner of Taxation v Miller[2] the High Court was concerned with the question of whether a person was a resident of an Australian territory for income taxation purposes. At that time there was no relevant statutory definition and the court observed:
[2] (1946) 73 CLR 93
Per Latham CJ at 99:
I should have thought that there was no doubt that a man resided where he lived, and I do not think that there is any interpretation of the word "reside" by the courts which makes it impossible to apply the ordinary meaning of the word "reside" in the present case. In Levene v. Inland Revenue Commissioners[3], Viscount Cave L.C. said:—
[3] [1928] AC 217
... the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside." In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.
Per Dixon J at 103:
The two cases of Levene and of Lysaght[4] are as striking as they are decisive in illustrating the way in which the question of "resident" or "not resident" has become a "question of degree and therefore of fact". Lord Buckmaster said:—"It may be true that the word "reside" or "residence" in other Acts may have special meanings, but in the Income Tax Acts it is, I think, used in its common sense and it is essentially a question of fact whether a man does or does not comply with its meaning."
[4] Inland Revenue Commissioners v Lysaght [1928] AC 234
Incidentally, a more recent version of the Shorter Oxford English Dictionary (Lesley Brown ed. The New Shorter Oxford English Dictionary Clarendon Press, 1993)) defines ‘reside’, inter alia, as:
Dwell permanently or for a considerable time, have one’s regular home in or at a particular place; Remain or continue in a certain place or position.
The case of Robertson v The Federal Commissioner of Taxation[5] concerned an Australian company director who spent more than six months of each year visiting England, partly for the purposes of the business and partly for pleasure. He did not retain ordinary accommodation there and lived in hotels. He sent his children to school there. The decision turned on its particular facts and the court was merely called upon to determine whether the Taxation Board of Review had properly taken into account all relevant matters. It so held.
[5] (1937) 57 CLR 147
In Foreman v Beagley[6] the court, at 841-2, noted that residence did not carry any technical import or some meaning only to be defined by lawyers but even so that its context was a matter relevant to its interpretation. The court was there concerned with a successor to possession under the UK Rent Act. The decision is of no direct assistance here.
[6] [1969] 3 All ER 838
In Fox v Stirk[7] Lord Denning MR, in considering a claim for electoral status by students at a university distant from their parents’ residence, followed Levene’s case (supra), observing that a person can have two residences, that a temporary residence or short-stay visit is not a residence, nor does it deprive a person of an original residence. His Lordship then observed (at 475):
[7] [1970] 2 QB 463
I think that a person may properly be said to be “resident” in a place when his stay there has a considerable degree of permanence. So I would apply the simple test …
In Re Taylor; Ex parte Natwest Australia Bank Ltd[8] the court was considering whether a particular act of bankruptcy was committed at a time when the bankrupt was ‘resident’ in Australia. The court there considered that the Bankruptcy Act did not confer any technical meaning on the expression ‘resident’ or ‘ordinarily resident’ and, in discussing the latter concept, Lockhart J observed (at 198):
[8] (1992) 37 FCR 194
The concept of "ordinary residence" for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently.
The court again followed Levene and Lysaght (supra).
The case of Akbarali & Ors v Brent London Borough Council[9] is of particular assistance. Each of the appellants had entered the United Kingdom for the purposes of completing a course of study there, had supported himself over some three years and had then applied to the local education authority for an academic award available upon completing the course of study. Each application had been refused on the footing that the student had not been at relevant times ‘ordinarily resident’ in the United Kingdom. It is of some interest there that none of the applicants had any formal right of abode in the United Kingdom.
[9] [1983] 2 AC 309
Lord Scarman considered two matters: what was the natural and ordinary meaning of ‘ordinary residence’ in the United Kingdom and did the statute otherwise require that some special meaning be attributed to those words? His Lordship followed Levene and Lysaght and observed, at 343:
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
And further, at 344:
The legal advantage of adopting the natural and ordinary meaning … is that it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. Templeman L.J. emphasised in the Court of Appeal the need for a simple test for local education authorities to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.
He observed that the decision appealed from had failed to give proper weight to the Levene and Lysaght decisions and (at 348) that the justices:
… attached too much importance to the particular purpose of the residence; and too little to the evidence of a regular mode of life adopted voluntarily and for a settled purpose, whatever it be, whether study, business, work or pleasure. In so doing, they were influenced by their own views of policy and by the immigration status of the students … Judges may not interpret statutes in the light of their own views as to policy.
The thrust of those authorities is plain, namely, that unless the particular legislation or instrument seeks to confine or limit its definition, the word ‘residence’ must carry its ordinary meaning, and a meaning which I am satisfied is made plain in the decisions from Levene and Miller through to Akbarali, which I have cited above.
It must follow from that line of authority that persons visiting Australia from overseas as travellers cannot be described as residing in the country for settled purposes even if their stay might be of some duration and, likewise, an Australian resident in the course of travelling overseas does not ordinarily acquire a residence in some foreign location.
It must also be the case, as Fox v Stirk holds, that a person can have two residences, whether both in Australia or otherwise, and, as well, it must follow that persons can temporarily absent themselves from their residence without abandoning it. These are all matters of common sense.
(5)The respondent advanced an argument that unless one could construe the meaning of the term by reference to legislation such as the Migration Act, the task facing the respondent in determining any claim would be an unreasonable one because it would otherwise cast upon the decision-maker the heavy onus of evaluating material put before him or her and, in some circumstances, require him or her to take account of a myriad of personal circumstances going to the definition for which the appellant contended.
I was not persuaded by that contention. As the appellant correctly replied, the Deed has a derivative statutory force, it is to be strictly interpreted and the onus falling upon the decision-maker in doing that is a serious one. The decision-maker is in no different position from any party called upon to manage a fund of a similar kind and there are many of them. He or she is entitled to properly inform himself/herself before making the decision and there is power in the Deed for him/her to require particulars and to take such advice as he/she may choose prior to making any decision.
For all these reasons I find that the appropriate test to be applied is that of considering the plain and simple meaning of the expression ‘resident of Australia’ and in that respect I am satisfied that that meaning is a person’s abode in a particular country which has been voluntarily adopted and for settled purposes as part of the regular order of his or her life for the time being, whether of short or long duration.
Against that background I have then considered the correctness of the respondent’s decision under clause 16.7 of the Deed.
Plainly, in focussing upon the appellant’s residence at the time of the agent’s failure, the respondent addressed the wrong question. But its failure went beyond that, says the appellant: it erred in fact in then finding (as inferentially it did) that the appellant was not even at that time a resident of Australia and further it failed to accord him procedural fairness, anyway, in so concluding as it ought have exercised its powers under clauses 16.4 or 16.5 and required him to supply further information as to residence.
In the present circumstances, I am not called upon to determine the first question, the appellant’s residence in June 2007, but even so it does appear to me that the respondent was precipitate in summarily rejecting the claim in December 2010 on what can only be presumed to have been the footing that his then address was in Thailand and that his covering letter did not advance any detail about his claim to have been resident in Australia at that time. I am satisfied that in making its decision without inviting the submissions of better particulars as to residence, the respondent failed to accord the appellant procedural fairness and demonstrated a lack of reasonable care in dealing with the claim. That failure is in one sense irrelevant, because the respondent was addressing the wrong question, but it is a matter which I have taken account of in deciding how the matter ought be dealt with.
The respondent has, of course, conceded that its decision was wrongly based but it argues in the first place that the court might affirm the decision, anyway, as it ought to find that even as of the date the travel arrangement was made, the appellant was not a resident of Australia. Alternatively, if the court is not disposed to do that, it argues that the appropriate course is for the court to remit the matters for fresh determination by it with appropriate directions as to the proper interpretation of the term ‘resident of Australia’. It says that it will then consider, as well, whether to exercise its discretion under clause 16.2 to accept the claim out of time.
For his part, the appellant argued:
(1)that at the relevant time he was a resident of Australia so the decision to reject can never have been a correct one;
(2)that in the circumstances, the court ought act under s 42F(b) of the DCA, substitute its own decision for that of the original decision-maker and allow the claim;
(3)that in substituting its own decision, the court is entitled to apply the terms of the amended Trust Deed of 2011 and must inevitably then find the appellant is entitled to compensation;
(4)that the respondent has already elected to accept the claim out of time under clause 16.2 and cannot reserve to itself the right to consider or reconsider that question.
In the first place, I should say that I am not disposed to remit the matter for fresh determination by the respondent, and for these reasons:
1.The claim is not a substantial one, considerable time has been occupied and moneys expended dealing with it already and it ought be promptly resolved.
2.I have serious reservations about the respondent’s capacity to exercise reasonable care in dealing with the claim and to properly discharge its fiduciary duty to the appellant.
Its failures at the time the claim was made to address the correct question and to accord the appellant procedural fairness have already been commented upon and they demonstrate a lack of reasonable care.
Further, I view with considerable disquiet its assertion that, were the matter remitted to it, it would be at liberty to consider the exercise of its discretion under clause 16.2 of the Deed; that it has not as yet undertaken that exercise.
On that topic, the appellant argued that in the particular circumstances here, the Deed envisaged two stages in the respondent’s entertainment of the claim: first, its decision to ‘accept the claim made later than 12 months’ under clause 16.2 and then, having so accepted, its decision to either admit or reject it under clause 16.7. Having previously decided to reject the claim, the respondent, it argued, must, inferentially, have already exercised its clause 16.2 discretion to accept it out of time.
For its part, the respondent said there was no magic in the contrasting terminology adopted in those subclauses and that a clause 16.2 decision had never been made by it.
I prefer the appellant’s contention as to this and find:
2.1By his letter accompanying the claim (A5), the appellant acknowledged his lateness in bringing the claim and proffered an explanation for it.
2.2The matters he raised necessarily alerted the respondent to the need to consider whether it ought to accept the claim under clause 16.2.
2.3I infer that it did consider that question and decided to accept the claim for consideration under clause 16.2 notwithstanding that it was made outside the 12-month period. No evidence was put before me by the respondent to suggest otherwise and had the Board chosen not to exercise its discretion under clause 16.2, it can reasonably be expected that it would have so informed the appellant in its letter of rejection. It did not do that.
For it to now assert it remains entitled, should the matter be referred back to it, to exercise that discretion is an attitude quite inconsistent with the proper exercise of its fiduciary duty.
3.In any event, having regard to the provisions of s 42E of the DCA, I am satisfied that the substantial merits of the case rest with the appellant.
Accordingly, I find that it is an appropriate case to substitute my own decision for that of the original decision-maker.
Before I do that I should comment upon the appellant’s contention that the court, in substituting its own decision, may apply the terms of the 2011 Trust Deed. It is strictly unnecessary for me to resolve that question, but were I called upon to do so, I would not favour the appellant’s position. I am not persuaded that the case of In Re Beni[10] supports it. Here, the amended Deed is concerned not with regulating ‘a legal remedy already conferred’, but with ‘supplying a remedy where there was none before’, that is to say, enabling a party, previously unable to access the Fund, to do so.
[10] (1974) 9 SASR 253
Otherwise, I am satisfied and find that the appellant was, at the time he made the relevant booking, a resident of Australia. I so find because of the matters asserted in his affidavit, which I accept, and because I am satisfied that as of April 2006, he had been voluntarily living in Australia for the settled purpose of obtaining permanent residency here and that he was residing in his Melbourne premises and working from there as part of the regular order of his life. The fact that he drove on occasions to other parts of Australia is unremarkable and not inconsistent with that settled purpose.
In summary then, the appeal is allowed because:
(1)on any account, the respondent applied the wrong test in reaching its decision. That of itself is a cogent reason for departing from it.
(2)I am satisfied that had it applied the correct test, it should have found that at the time the booking was made, the appellant was a resident of Australia.
(3)I am satisfied that the Board elected to accept the appellant’s late application under clause 16.2 and to deal with it, and that it cannot seek to revive that issue now.
(4)I have, for the reasons expressed above, then decided to substitute my own determination for that of the decision-maker and it is that the appellant is entitled to the compensation he claims.

The appeal is allowed, the decision of the Board is rescinded and in place of it I record the finding that the appellant is entitled to be paid compensation pursuant to the Deed in the sum of $11,103.